Mr. Frederick Perillo, The Previant Law Firm, S.C., 1555
North Rivercenter Drive, #202, Milwaukee,
Wisconsin 53212, appeared on behalf of the Union.

Ms. Ellen Totzke, Deputy City Attorney, 100 North Appleton
Street, Appleton, Wisconsin 54911-4799,
appeared on behalf of the City.

ARBITRATION AWARD

On May 7, 2012 the Appleton Professional Police Association filed a request with the
Wisconsin
Employment Relations Commission, seeking to have the Commission appoint a member of
its staff to hear
and decide a grievance pending between the Union and the City of Appleton Police
Department, regarding
proration of vacation benefits for two City of Appleton police officers. Following
jurisdictional concurrence
from the employer, the Commission appointed John Emery, a member of its staff, to hear
and decide the
matter. A hearing was conducted on July 31, 2012, in Appleton, Wisconsin. The hearing
was transcribed.
The parties submitted and exchanged briefs by September 14, 2012.

ISSUE

The parties did not stipulate to a statement of the issues. The Union regards the issue
to be:

Did the City violate Article 19 of the collective bargaining agreement and the
USERRA by reducing the vacation pay of Sergeant McCormick and Officer
Kopesky?

If so, what is the remedy?

The City regards the issue to be:

Did the City violate the Collective Bargaining Agreement when it prorated
vacation
pay for officers Kopesky and McCormick, and if so, what is the appropriate
remedy?

The Arbitrator adopts the statement of the issues proposed by the City.

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PERTINENT CONTRACT
LANGUAGE

ARTICLE 8 ­ VACATIONS

The vacation policy for the Police Department to be on a work week basis as follows:

1 work week vacation after 1 year of service.

2 work weeks vacation after 2 years of service.

3 work weeks vacation after 8 years of service.

4 work weeks vacation after 12 years of service.

5 work weeks vacation after 20 years of service.

Regular employees will be eligible for their first paid vacation as of the first
anniversary date
of their date of hire. After qualifying for their first vacation, employees will be eligible for
future vacations as of January 1 of each calendar year.

If an employee qualifies for a 1, 2, 3 or 4 week vacation as of January 1 and
completes
the service necessary for an additional week of vacation later in that calendar year, such
employee shall receive the additional week of vacation after their anniversary date and shall
thereafter be eligible for such increased vacation as of January 1 of each succeeding
calendar year.

. . .

In case of termination, for reasons other than discharge for cause, an employee will
be paid
their unused vacation.

. . .

ARTICLE 10 ­ LEAVES

A. Sick Leave

All Officers shall be granted sick leave with pay at the rate of 5.33 hours for each
full
month of service. All Officers hired after 1/1/11 shall receive 4 hours for each full month
of service until January 1 following the year said employee qualifies for the Senior Police
Officer by passing the Position Enhancement Program test. On January 1 following that
year the employee will receive 5.33 hours for each month of service.

. . .

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D. Leave of Absence Without Pay

1. Requests for leave of absence without pay for justifiable
reasons shall be
made by written application on a form provided by the Human Resources
Office and be submitted at least two (2) days prior to the anticipated
leave.

a) For a leave not to exceed three (3) consecutive
days, their
request shall be made to and approved by the Police Chief.

b) For a leave in excess of three (3) consecutive
days, or for a
partial leave of absence, they shall make their request to the
Director of Human Resources after securing the approval of the
Chief.

c) No employee shall be granted a leave of absence
without pay
unless such employee makes arrangements in advance with the
Director of Human Resources for payment of hospital/surgical and
life insurance during the period of the absence.

d) Employees on a partial leave of absence shall be
paid at their
regular rate for actual hours worked and shall receive pro-rated
fringe benefits based on actual hours worked, provided, however,
that such leave shall not change the employee's seniority date.

2. A leave of absence without pay shall be granted to
employees for
recuperation from off-duty injury or illness, provided that the following
requirements are met in addition to the requirements of item 1 above:

a) The leave shall be for the period of the doctor's
prognosis but not
to exceed one year.

b) The employee must use all available accumulated
sick leave,
vacation and compensatory time before going on such leave.

c)The employee must provide, in advance, a doctor's statement
indicating that the employee will be
able to return to regular duties within one year of the start of the leave.

3. Failure to comply with the requirements of this article
shall result in
disciplinary action.

. . .

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ARTICLE 19 ­ MILITARY LEAVE

Police Officers having permanent status and who are duly enrolled members of the
National Guard, the State Guard, the Officers Reserve Corps, the Enlisted Reserve Corps,
the Naval Reserve, the Naval Reserve Corps, the Marine Corps Reserve or any other
reserve component of the military or naval forces of the United States or the State of
Wisconsin now or hereafter organized or constituted under Federal Law, are entitled to
leaves of absence without loss of time to enable them to attend military or naval schools,
field camps of instruction and naval exercises which have been duly ordered held, but not
to exceed fifteen (15) days, excluding Sundays and holidays, in the calendar year in which
so ordered and held. All military leave, including active duty shall be governed by
USERRA.

The difference in pay between military pay during time of attendance and the
employee's
regular pay during the same period shall be paid by the City.

The leave granted is in addition to all other leaves.

RELEVANT CITY POLICIES

CITY OF APPLETON POLICY FMLA (Family Medical
Leave Act)

I. PURPOSE

To outline the conditions that permit an employee to request time off for a period as
prescribed by law with no loss of benefits or accumulated service if the employee returns
to work. This policy will also serve to document employee rights and responsibilities.

. . .

G. Intermittent Leave: Under the Wisconsin
FMLA provision, intermittent leave
may be taken as long as it does not unduly disrupt the department's operations.
Departments must notify Human Resources before approving such a request.

Under the Federal FMLA provision, intermittent leave may be taken for a
birth or
placement of a child for adoption, foster care or military family leave. Employees
may take leave intermittently or on a reduced leave schedule with prior approval
by the Department Director or Human Resources. When FMLA is taken to care
for a sick family member or for an employee's own serious health condition, leave
may be taken intermittently or on a reduced leave schedule when medically
necessary.

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H. Substitution: Under the Wisconsin
FMLA, employees have the ability to
substitute leave.

. . .

During the first 30 days of unpaid leave, an employee will continue to accrue
all
benefits provided by City policies and collective bargaining agreements. Benefits
other than health care coverage will cease to accrue beyond 30 days of unpaid
leave.

. . .

CITY OF APPLETON POLICY MILITARY
LEAVE

I. PURPOSE

To outline for employees who are members of the military forces of the
United
States of America, either on active duty, in the Reserves or members of the
National Guard their responsibilities and rights as City of Appleton employees, as
well as the procedures for compliance with the Uniformed Services Employment
and Reemployment Rights Act (USERRA).

II. POLICY

It is the policy of the City of Appleton to allow military leave to all employees
who
temporarily leave the service of the City to join the military forces of the United
States. Such leave will be without pay for all regular full-time, seasonal, temporary
and grant-funded non-represented employees. Regular full-time employees will
be granted a leave of absence from his/her position without loss of pay for a period
not to exceed two consecutive calendar weeks in any calendar year. The City will
pay such an employee for time lost in the amount equaling the difference between
the military pay and his/her normal City pay.

. . .

1. A person who is reemployed under USERRA is entitled
to the seniority
and other rights and benefits determined by seniority that the person had
upon commencing uniformed service and any additional seniority and
rights and benefits he or she would have attained if continuously employed.
A person who is absent by reason of uniformed service shall be deemed
to be on leave of absence from the City and is entitled to such other rights
and benefits not determined by seniority as generally provided by the

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City to employees on leave of absence having similar seniority, status
and
pay who are also on leave of absence, as provided under the contract or
policy in effect during the Service member's absence because of
uniformed service. The individual may be required to pay the employee
cost, if any, of any funded benefit continued to the same extent other
employees on leave of absence are required to pay.

RELEVANT PROVISIONS OF THE UNITED
STATES CODE

Title 38, United States Code

. . .

CHAPTER 43 ­ EMPLOYMENT AND REEMPLOYMENT RIGHTS OF
MEMBERS
OF THE UNIFORMED SERVICES

. . .

§ 4301. Purposes; sense of Congress

(a) The purposes of this chapter are ­

. . .

(3) to prohibit discrimination against persons because of their
service in the uniformed
services.

. . .

§ 4302. Relation to other law

(a) Nothing in this chapter shall supersede, nullify or diminish any
Federal or State law
(including any local law or ordinance), contract, agreement, policy, plan, practice
or other matter that establishes a right or benefit that is more beneficial to or is in
addition to, a right or benefit provided for such person in this chapter.

(b) This chapter supersedes any State law (including any local law
or ordinance),
contract, agreement, policy, plan, practice or other matter that reduces, limits or
eliminates in any manner any right or benefit provided by this chapter, including the
establishment of additional prerequisites to the exercise of any such right or the
receipt of any such benefit.

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§ 4303. Definitions

For the purposes of this chapter -

. . .

(2) The term "benefit", "benefit of employment", or "rights and
benefits" means the
terms, conditions, or privileges of employment, including any advantage, . .
.vacations, . . .

. . .

(12) The term "seniority" means longevity in employment together
with any benefits of
employment which accrue with, or are determined by, longevity.

§ 4311. Discrimination against persons who serve in the
uniformed services and
acts of reprisal prohibited

(a) A person who is a member of, applies to be a member of,
performs, has
performed, applies to perform, or has an obligation to perform service in a
uniformed service shall not be denied initial employment, reemployment, retention
in employment, promotion, or any benefit of employment by an employer on the
basis of that membership, application for membership, performance of service,
application for service, or obligation.

. . .

§ 4316. Rights, benefits, and obligations of persons absent from
employment for
service in a uniformed service

(a) A person who is reemployed under this chapter is entitled to the
seniority and
other rights and benefits determined by seniority that the person had on the date
of the commencement of service in the uniformed services plus the additional
seniority and rights and benefits that such person would have attained if the person
had remained continuously employed.

(b)(1) Subject to paragraphs (2) through (6), a person who is absent
from a position of
employment by reason of service in the uniformed services shall be -

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(A) deemed to be on furlough or leave of absence while performing
such service; and

(B) entitled to such other rights and benefits not determined by
seniority as are
generally provided by the employer of the person to employees having similar
seniority, status, and pay who are on furlough or leave of absence under a
contract, agreement, policy, practice or plan in effect at the commencement of
such service or established while such person performs such service.

§ 4323. Enforcement of rights with respect to a State or private
employer

(a) Action for relief ­ (1) A person who receives from the
Secretary a notification
pursuant to section 4322(e) of this title of an unsuccessful effort to resolve a
complaint relating to a State (as opposed to an employer) or a private employer
may request that the Secretary refer the complaint to the Attorney General. Not
later than 60 days after the Secretary receives such a request with respect to a
complaint, the Secretary shall refer the complaint to the Attorney General. If the
Attorney General is [reasonably] satisfied that the person on whose behalf the
complaint is referred is entitled to the rights or benefits sought, the Attorney
General may appear on behalf of, and act as attorney for, the person on whose
behalf the complaint is submitted and commence an action for relief under this
chapter for such person. In the case of such an action against a State (as an
employer), the action shall be brought in the name of the United States as the
plaintiff in the action.

. . .

(d) Remedies - (1) In any action under this section, the court may
award relief as
follows:

(A) The court may require the employer to comply with the
provisions of this chapter.

(B) The court may require the employer to compensate the person
for any loss of
wages or benefits suffered by reason of such employer's failure to comply with the
provisions of this chapter.

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MA-15176

(C) The court may require the employer to pay the person an
amount equal to the
amount referred to in subparagraph (B) as liquidated damages, if the court
determines that the employer's failure to comply with the provisions of this chapter
was willful.

RELEVANT CODE OF FEDERAL REGULATION
PROVISIONS

Subpart D ­ Rights, Benefits and Obligations of Persons Absent
from Employment
Due to Service in the Uniformed Services

. . .

§1002.211 Does USERRA require the employer to use a
seniority system?

No. USERRA does not require the employer to
adopt a formal seniority system.
USERRA defines seniority as longevity in employment together with any employment
benefits that accrue with, or are determined by, longevity in employment. In the absence
of a formal seniority system, such as one established through collective bargaining,
USERRA looks to the custom and practice in the place of employment to determine the
employee's entitlement to any employment benefits that accrue with, or are determined by,
longevity in employment.

§1002.212 How does a person know whether a particular right
or benefit is a
seniority-based right or benefit?

A seniority-based right or benefit is one that accrues
with, or is determined by,
longevity in employment. Generally, whether a right or benefit is seniority-based depends
on three factors:

(a) Whether the right or benefit is a reward for length of service rather
than a
form of short-term compensation for work performed;

(b) Whether it is reasonably certain that the employee would have received
the right or benefit if he or she had remained continuously employed during the period of
service; and

(c) Whether it is the employer's actual custom or practice to provide or
withhold the right or benefit as a reward for length of service. Provisions of an employment
contract or policies in the employee handbook are not controlling if the employer's actual
custom or practice is different from what is written in the contract or handbook.

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§1002.213 How can the employee demonstrate a reasonable
certainty that he or
she would have received the seniority right or benefit if he or she had remained
continuously employed during the period of service?

A reasonable certainty is a high probability that the
employee would have received
the seniority or seniority-based right or benefit if he or she had been continuously
employed. The employee does not have to establish that he or she would have received
the benefit as an absolute certainty. The employee can demonstrate a reasonable certainty
that he or she would have received the seniority right or benefit by showing that other
employees with seniority similar to that which the employee would have had if he or she
had remained continuously employed received the right or benefit. The employer cannot
withhold the right or benefit based on an assumption that a series of unlikely events could
have prevented the employee from gaining the right or benefit.

BACKGROUND

Sergeant William McCormick and Officer Nathaniel Kopesky are employed as police
officers by
the City of Appleton. They are members of a collective bargaining unit represented by the
Appleton
Professional Police Association. The Association has a collective bargaining agreement in
effect with the
City of Appleton. Relevant provisions of that agreement are set forth below.

The facts giving rise to this dispute arose on, or about, May 6, 2011 when
McCormick and
Kopesky were called to active Military duty. The two men were directed to report to basic
training
commencing May 24, 2011. McCormick took 9 paid leave days surrounding his 56 unpaid
days of military
leave. He took 2-3 weekends prior to his leave, and one weekend upon his return.
McCormick's unpaid
leave ran from May 27 ­ September 13, 2011.

Kopesky took no paid days before leaving for basic training, and took 3 paid military
leave days
upon his return in October, 2011.

McCormick and Kopesky were absent from work during the entirety of their
respective leaves.
There was no intermittent return to work.

Each man received a letter informing him as to how the leave would be handled. The
following are
relevant excerpts from those letters:

This letter is to outline for you, in writing, how the City will handle your benefits
and
reemployment as a result of your military leave.

. . .

Health and Dental Benefits: Your group Health and Dental benefits will continue
through
May 31, 2011. As of June 1, 2011, you will be offered

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COBRA continuation for the lesser of the twenty-four (24) month period beginning
June
1, 2011 or the date on which you are required to apply for or return to a position of
employment as specified in the policy, and fail to do so. You will be responsible for the
full cost of the premium if you decide to continue coverage during your leave. Upon
reemployment, you will be reinstated on your group health and dental plan without any
waiting period or evidence of insurability. Any injury or illness caused or aggravated by
the performance of your duties for/or in the military may be excluded from coverage.

Life Insurance: Your life insurance benefits will cease during your military leave.
Upon
your successful reemployment, your life insurance will be reinstated.

Wisconsin Retirement: Upon your successful reemployment, the City will make
whole any
required contributions to the Wisconsin Retirement System that would have been made for
you had you been at work instead of on Military Leave.

Post Employment Health Plan:

Upon your return to City employment, the City will make whole your post
employment
health plan for the period you were on military leave.

Vacation: Future vacation entitlements will continue as if you were working during
the
period that you were on military leave however, vacation benefits will not accrue during
your military leave and will not be cumulative. For 2012, your vacation will be prorated
based on your time worked in 2011.

PTO: Your PTO days for 2011 will be pro-rated based on your time worked in
2011.

Sick Leave: Your sick leave balance will be frozen and will remain available when
you
return to work. You will not continue to accrue sick leave into your account while on
military leave.

Pay Adjustments: Your salary will be adjusted by any approved cost of living
adjustment
for each year you are on military leave.

Key to this dispute is the provision that indicates that "For 2012, your vacation will
be prorated
based on your time worked in 2011."

A form titled "Military Leave of Absence Request" accompanied the letter. It detailed
the duration
of the requested leave, indicated how much time would be taken in paid, and unpaid status,
and was signed
by the employee, the supervisor, the department head, and the human resources director.

During the course of basic training, both men received instruction that caused them to
believe that
their vacation should not have been prorated.

On or about, January 12, 2012, each man received notification that his vacation
would be prorated
for 2012. On, or about, January 30, 2012 a grievance was filed. The grievance was denied
on April 18,
2012 and the matter proceeded to arbitration. Additional facts will be referenced, as
necessary, in the
DISCUSSION section of this award.

POSITIONS OF THE PARTIES

The Union

The Union asserts that the City of Appleton has reduced the vacation pay owed to the
two officers
because of their absence due to their reserve commitments. This reduction is alleged to be
unlawful for
three reasons. First, under the collective bargaining agreement there is no bona fide work
requirement to
earn vacation; the benefit is therefore a "perquisite of seniority" and the veterans are
automatically entitled
to the full vacation amount by virtue of their seniority alone. Second, because the leave is
paid, federal
regulations explicitly require the vesting of vacation benefits for the employees. Finally, even
if vacation
were not a perquisite of seniority under this contract, the city grants vacation without
reduction to
employees on leave of absence for reasons other than military commitments. The USERRA
specifically
prohibits such discrimination.

The Union notes that Article 19 of the collective bargaining agreement requires the
City to comply
with USERRA.

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MA-15176

It is the view of the Union that because Appleton provides vacation credit to
employees on FMLA
or non FMLA leaves it must treat veterans no worse.

The Union argues that vacation is a perquisite of seniority under the collective
bargaining agreement,
and by law, must be afforded vacation accrual during the military absence. It is the view of
the Union that
there exists no work requirement to earn vacation under the terms of the collective
bargaining agreement.
The Union attacks contractual limits on the leave and/or benefit as barred by law.

It is the view of the Union that for a variety of reasons Article 10 cannot reduce the
benefits
provided in the more specific military leave provision. Additionally, the Union contends that
every provision
of Article 10 is unlawful as applied to a veteran. Rather, USERRA requires the City to
provide veterans
with any benefit provided other employees on any other types of absence. The Union points
to the record
relative to other employees who took leaves and suffered no vacation accrual reductions and
argues that
the City is not permitted to discriminate against the veterans.

The City

The City does not contest that leaves under FMLA are handled differently from
those
under
military leave. The laws and underlying policies are alleged to be different.

The City maintains it has acted consistently with Article 10 of the collective
bargaining agreement.
The contract distinguishes between leaves for non-medical reasons and leaves for medical
reasons. It is the
view of the City that both the contract and City policy require pro-ration of benefits for
extended unpaid
leave.

The City draws a distinction between vacation accrual and vacation use. The city
contends that:
"while the entitlement is based on years of service, the Union presented no testimony that the
City failed
to count the time spent in military service towards the accrual rate of vacation entitlement.
The use of their
vacation was pro-rated in accordance with its provisions just as they would be for any other
officer taking
a leave of absence."

It is the view of the City that USERRA generally treats accrual of vacation leave as a
non-seniority
benefit which is required to be provided only if the employer provides that benefit to
similarly situated
employees on comparable leaves of absence.

With one exception, which the City corrected, the FMLA examples offered by the
Union do not
exceed the 12 week annual cap for FMLA leaves.

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DISCUSSION

The Union offered testimony relative to certain employees who have taken leaves
without pay
without having vacation prorated the subsequent year. The Union introduced testimony that
police officer
Bradley L. took 72 unpaid leave days and 20 additional family leave days for a total of 92
unpaid days in
2010. The next year he was given his full complement of vacation days. When the Union
filed this grievance
and brought this example to the attention of management, Mr. L. had his vacation prorated.

Police officer Andy M. took 30 days of unpaid family leave in 2004. He was given
his full allocation
of vacation the next year.

Police officer Jackie M. took 30 days unpaid family leave in 2004. She received her
full
complement of vacation days in 2005.

Police officer Kelly G. took 19 days unpaid in 2004 and received a full complement
of vacation
in 2005. In 2007 G. took 14 unpaid days with no subsequent reduction of vacation for 2008.

The City offered evidence that Police officer Dustin Y. had his vacation prorated
following his
active service in 2007. The City offered further evidence that Police officer Chad L. had his
vacation
prorated following his active service in 2007. Neither officer Y. nor officer L. filed a
grievance over the
vacation proration. Both filed complaints with the Department of Labor and both received
non prosecution
letters.

The City also introduced evidence of an employee of the Department of Public Works
who took
a military leave in 2004 and a second military leave in 2007. That employee had his vacation
prorated the
subsequent year. It appears from this record that all City employees who took unpaid military
leaves
received the same letter, and were all subject to the proration of vacation leave the
subsequent year.

Article 8 of the contract regulates vacation eligibility and use. It establishes a
schedule
of vacation
accrual which is tied to the number of years' service. The term service is not defined. These
parties disagree
as to whether or not service includes a work requirement.

Article 10 addresses leaves. Article 10 (D) establishes and defines Leave of Absence
Without Pay.
The Article speaks in broad, generic terms. Par. 1 has a number of provisions which specify
how to apply
for a leave and the approval process. None of this is meaningfully applicable to the military
leave which is
the subject of this proceeding. The City points to par. 1(d) to support its proration of
vacation accrual/use.

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Par. 1(d) uses the term partial leave. The term is not defined. However,
Webster's Seventh New
Collegiate Dictionary defines it as "of or relating to a part rather than the
whole". It hardly seems
to describe a complete leave of absence that occurred over a 3½ month period. It more
resembles the
Intermittent leave described in the City FMLA Policy. If a partial leave is one which permits
an employee
to work part time or on a reduced basis, the pro-ration of benefits makes sense, and can be
calculated as
the leave progresses.

The City FMLA Policy addresses unpaid leave, and provides that the first 30 days of
unpaid leave
results in a full accrual of benefits. This provision relating to unpaid leave appears to address
the situation
of an employee who is taking an unpaid leave of absence which extends beyond 30 days.

Article 19 ­ Military Leave appears to specifically address the leaves in
dispute. Most of the
provisions of this Article appear to address relatively short term commitments to military
service. The
Article uses terms such as schools, field camps of instruction, and naval exercises, but not to
exceed 15
days. In the context of the Article, 15 days must be a reference to the amount of paid time
available under
the Article. In that context it makes sense. The City is committed to paying up to 15 days for
leave related
to Military service. Both grievants took advantage of this benefit. Read in this way Article 19
is consistent
with the City Policy relating to Military Leave.

There are only two provisions of Article 19 applicable to longer term military leave.
The last
sentence in the first paragraph reads "All military leave, including active duty shall be
governed by
USERRA." The second applicable provision is the last paragraph of the Article: "The leave
granted is in
addition to all other leaves."

The leaves that have generated this dispute were calls to active military duty.
USERRA is the law
of the land regardless of the terms of the collective bargaining agreement. By its terms it
supersedes
inconsistent local law or contract. The collective bargaining provision which provides that
active duty is
governed by USERRA has meaning only to the extent that it incorporates USERRA into the
agreement for
purposes of defining the rights of a police officer who is called to active duty. For purposes
of this dispute
USERRA has been incorporated into the collective bargaining agreement and is enforceable
through this
agreement.

Sec. 4316 USERRA provides that someone returning from military leave is entitled to
the seniority
based benefits they left with and also the benefits they would have accrued had they remained
continuously
employed. If vacation accrual is a seniority based benefit McCormick and Kopesky would
have accrued
a full complement of vacation during the period in question. The Federal Code, Sec.
1002.213, confirms
this to be the case. There is no record reference to any continuously employed employee who
was denied
vacation accrual. If vacation accrual is regarded as a seniority based benefit, S. 4316
mandates that the
grievants receive vacation accrual during their military leave.

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S. 4316 (A) and (B) address those benefits not determined by seniority. Under that
provision
employees returning from a military leave of absence are entitled to the benefits generally
provided by the
employer to employees having similar seniority, status and pay who are on leave of absence.
The evidence
in this matter consisted of leaves taken by police officers. They occupy the same status and
receive the
same pay as do the grievants. Seniority is not a relevant consideration in this matter in that
the pro-ration
is applied across the board to vacation accrual. That is to say, employees with more or less
seniority would
have suffered the same vacation pro-ration.

The record reflects the consistent vacation pro-ration for all military leave. The City
argues that it
has applied its military leave consistently, and that appears to be the case. The record also
reflects that
there was no pro-ration of vacation benefits for any other leave taken. For employees Andy
M., Jackie
M. and Kelly G. the leaves were less than 30 days and the lack of pro-ration is explained by
the City
FMLA policy set forth above. The policy explains why the individuals noted did not suffer a
pro-ration of
vacation. It does not explain why the individuals on military leave did not receive full accrual
for 30 days.

This leaves the curious case of Bradley L. Mr. L. took a good deal of the year as
unpaid leave.
His leave far exceeded the 30 days referred to in the City Policy. He was given his full
complement of
vacation in 2011. It was not until this matter arose that the City looked back to correct what
it alleged to
have been a mistake. The merits of that dispute are pending in another forum.

If the City is right and the Bradley L. matter was a mistake we are left with a record
that indicates
that FMLA leaves are subject to a rule where the first 30 days of unpaid leave are not
prorated. The rule
suggests that leave beyond 30 days would be prorated but there is no experience to test the
application of
that rule. Mr. L., corrected, would then support the position of the City that other than the
first 30 days of
FMLA leave, leaves of absence without pay result in vacation proration.

If the Union is right, and the only reason Bradley L. was adjusted was the presence
of
this
grievance, we are left with a scenario where the only unpaid leaves of absence subject to
vacation proration
are military leaves of absence. It is possible that FMLA leaves in excess of 30 days would
result in pro-ration, but there are no examples of that being applied.

My review of the record finds no support for the City. Had the Union not brought
the Bradley L.
matter to the attention of City management, there is no indication that the matter would have
been reviewed
and adjusted. As of the filing of the grievance, the record reflected that the only unpaid
leaves that resulted
in pro-ration of vacation leave were military leaves.

The City FMLA rule and this record indicate that employees who take an unpaid
FMLA leave
accrue full vacation leave for 30 days. Employees on military leave do not. The City is right
that the two
leaves derive from different statutes and have different philosophical

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underpinnings. That said, S. 4316 requires the employer to provide the same benefits
as are provided to
relevant others. The federal code does not draw the distinction relied upon by the City. At a
minimum, I
believe the law requires the City to provide full accrual of benefits for the first 30 days of
unpaid military
leave. The only evidence of how the employer has applied vacation proration beyond the 30
unpaid leave
day point, in non-military leave circumstances, is Bradley L. I am unwilling to treat the
Bradley L. situation
as establishing that the City pro-rates vacation for extended unpaid leave. If anything, it
argues to the
contrary.

In my view, if vacation accrual is regarded as a non-seniority based benefit, the
grievants are
entitled to a full accrual during the term of their military leave since the City generally
provides that benefit
to employees on leave of absence.

The City contends that it has applied the military leave vacation accrual benefit
consistently. The
record supports that contention. However, I do not regard that to be a valid defense to this
claim because
the application of the benefit is less than that provided under other circumstances.

AWARD

The City violated the Collective Bargaining Agreement when it prorated vacation pay
for
officers Kopesky and McCormick. The City is directed to credit each of the grievants with
the full
accrual of vacation benefits for the period of their respective leaves of absence.